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SAMPLE MEDIATION AGREEMENT (to be adapted as appropriate) |
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THIS AGREEMENT is made the ............................... day of ............................ BETWEEN ............................................. (hereinafter described as the MEDIATOR) AND .......................................... of .................................................................... AND .......................................... of ....................................................................
(each a "party" and together the "parties") 1. Introduction: 1.1 The parties have a dispute which they cannot themselves resolve. 1.2 The parties desire to achieve a resolution of their dispute which is acceptable to each of them. 1.3 To reach their resolution, the parties wish to have their dispute mediated and the Mediator agrees to mediate the dispute.
2. Agreement 2.1 The parties together and individually request the Mediator to mediate their dispute and the Mediator hereby agrees to do so. 2.2 The parties and the Mediator agree that the terms and conditions upon which the Mediator has agreed to mediate the dispute are contained in this Agreement and in the current Rules for mediation published by the [The Law Society of Hong Kong] (“the Rules”). 2.3 The parties agree with each other and the Mediator to be bound by the terms and conditions contained in this agreement and for the mediation to be conducted in accordance with the Rules, a copy of which shall be signed by the parties. 2.4 Expressions used in this agreement are defined and have the meaning given to them in paragraph 11 of this agreement. This agreement is subject to the Rules and in the event of any discrepancy the Rules shall have precedence.
3. Conduct of the Mediation 3.1 The mediation, all preliminary steps, conferences and individual sessions, shall be conducted in accordance with the Rules. 3.2 The Mediator may communicate with a party or the parties orally and/or in writing. 3.3 The parties agree to attend the mediation venue at the time and place prescribed by the Mediator from time to time and the parties shall comply with every reasonable request of the Mediator.
4. The Role of the Mediator 4.1 The Mediator will facilitate discussions between the parties to assist them to reach their own agreement and will not impose an agreement upon the parties. 4.2 The Mediator will conduct himself without bias toward or against any party. 4.3 The Mediator shall not have any pecuniary or other interest or be connected in any way with either of the parties or any of their properties. 4.4 The Mediator acknowledges that he has disclosed to the parties to the best of his knowledge any prior dealings he has had with either of the parties and any interest in the matter. 4.5 If, in the course of the mediation, the Mediator becomes aware of any circumstance that might reasonably be considered to affect his capacity to act impartially he will immediately inform the parties of those circumstances. The parties will then confer and if agreed continue with the mediation. 4.6 The Mediator will not make decisions for the parties. 4.7 Although the parties acknowledge by signing this Agreement that they are aware that the Mediator has professional qualifications as a lawyer, the parties specifically acknowledge that it is no part of the function of the Mediator:- (a) to give professional advice to either of the parties or (b) to make decisions for or on behalf of a party to resolve a dispute. 4.8 The Mediator may at any time upon giving of a 7 day written notice to the parties terminate this Agreement and abandon the mediation if in his judgement further efforts at mediation would not lead to a settlement of the dispute. If this Agreement is so terminated, the Mediator shall be paid at the rate and in the manner set forth in clause 10 hereof up to the date of termination.
5. The Parties 5.1 Each of the parties agrees that they came to the mediation voluntarily and that neither has exerted any pressure or influence over the other to participate in the mediation. 5.2 The parties confirm that they each have a desire and ability to resolve their dispute. 5.3 The parties each acknowledge that they are not aware of any impediment to their signing terms of settlement or acknowledging any settlement reached at the mediation.
6. Relationship between the Parties and the Mediators 6.1 The Mediator will not have a separate meeting or discussion with either party except: (a) immediately prior to the mediation at the individual session to discuss and explain the purpose, function and parameters of the mediation; or (b) with the knowledge of the other parties during the course of the mediation process. 6.2 The parties acknowledge that provided each such meeting is with the knowledge of the other parties, the Mediator may meet with either party alone as frequently and for such lengths of time as he in his absolute discretion thinks fit. 6.3 Information, whether oral or written, disclosed to the Mediator by a party in the absence of the other party will be confidential, but may be disclosed by the Mediator to the other party with the permission of the party providing the information. 6.4 The parties agree that each of them is entitled to consult and retain lawyers for counsel and advice concerning their rights, interests and obligations in the dispute and they may consult with their lawyer on these matters. By agreement, lawyers representing the parties may be present during the mediation. 6.5 The parties acknowledge and agree as between themselves and the Mediator that for a successfully mediated agreement, open and honest communications are essential and, accordingly, all written and oral communications, negotiations and statements made in the course of the mediation will be treated as privileged settlement discussions and are absolutely confidential, therefore: (a) The Mediator will not reveal anything discussed in the mediation unless with permission of both parties or compelled by law to do so. (b) Parties will not, at any time before, during or after the mediation, call the Mediator as a witness in any legal or administrative proceedings concerning the dispute. (c) The parties agree not to subpoena or demand the production of any records, notes or documents of the Mediator concerning this dispute. To the extent that any of the parties may have a right to demand those documents, that right is hereby expressly waived. (d) If, at a later time, either party subpoenas the Mediator that party agrees to reimburse to the Mediator expenses which he incurs (including all legal fees on an indemnity basis) plus the fee per hour prescribed in the schedule for all the time that is taken by him to attend to the matter, including all costs of defending such subpoena. (e) The Mediator is not required to maintain notes or records of the mediation. (f) The parties will respect the Rules which provide that the Mediation is private and confidential and that every document, communication, or information disclosed, is disclosed on a privileged and without prejudice basis (Rule 12).
7. Termination 7.1 While it is hoped that the parties will reach agreement, it is understood that either or both parties may, at any time, withdraw from the mediation. 7.2 If the Mediator determines that it is not possible to resolve the dispute through mediation or for any other reason, the Mediator may in his discretion terminate the process.
8. Settlement of the Dispute 8.1 When an agreement between the parties is reached the Mediator will write it down. The parties can then agree to either:- (a) sign the agreement and make it binding between them to the extent that the law may allow, including allowing it to be disclosed; (b) accept it as a "without prejudice" memorandum of understanding upon which each party can consult their lawyer. The parties' lawyers shall thereafter be responsible for concluding binding terms of settlement between the parties although a further meeting with the Mediator may be required.
9. Exclusion of Liability and Indemnity 9.1 The Mediator will not be liable to a party (except in the case of fraud) for any act or omission, (whether negligent or misleading or otherwise) in the performance or purported performance of the Mediator's obligations under this Agreement. 9.2 The parties jointly and severally indemnify the Mediator against all claims (including all legal fees incurred by the Mediator, on an indemnity basis), except in the case of fraud, arising out of or in any way referable to any act or omission by the Mediator in the performance or purported performance of his obligations under this Agreement.
10. Mediation Fee 10.1 The parties will pay to the Mediator a fee for conducting the mediation for the whole of which each party will be jointly and severally liable to the Mediator. The parties agree between them to contribute in equal shares for the fees and to be severally liable inter se for one half of the fees due to the Mediator. The parties shall each pay 50% of the expenses for using the venue of the mediation and the Mediator's costs, fees and expenses in providing the Mediation Services. If either party fails to pay any such amount within 7 days after the due date, then whichever of them is not in default shall pay the amount on behalf of the defaulting party. This amount shall then be a debt due from the defaulting party. Subject to the foregoing, each party shall each bear its own costs (including legal expenses) regardless of the outcome of the mediation or of any subsequent adjudication, arbitration or other proceedings. 10.2 The fee shall include payment for all necessary work including conferences and correspondence between the Mediator and the parties, preparation for the mediation by the Mediator, individual sessions, and mediation sessions with the parties, telephone attendances, preparation of documents, travel time, and any disbursements incurred by the Mediator. 10.3 The mediation fee shall be as prescribed in the attached schedule and the deposit prescribed is due and payable upon the execution of this Agreement by the parties and shall be deposited with the Mediator. 10.4 There shall be refund of the mediation fee and deposit in accordance with the Rules after charging for disbursements and time spent at the hourly rate. 10.5 The Mediator may render bills for fees or expenses when the Mediator considers suitable and in the event that they exceed the deposit, may require the parties to place on deposit a further sum to cover anticipated fees or expenses prior to proceeding with the mediation. 10.6 The Mediator shall maintain records of the time spent by him in connection with the provision of the Mediation Services and shall produce such records to the parties at all reasonable times on request.
11. Definitions and Interpretation 11.1 Unless otherwise provided in this Agreement, the following terms shall have the following meanings:- (a) individual session: Meetings between the parties alone and the mediators where the terms, process, objectives and course of the mediation can be discussed. (b) mediation session: The joint session involving the parties and the mediators convened to resolve the parties dispute. 11.2 Where appropriate the singular in the Agreement shall include the plural and vice versa, and the male shall include the female.
SCHEDULE Mediation fee : [Negotiable] Deposit :
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